1. US Gov. passes Executive Order permitting: a) the Depart. of State to identify individuals/organizations as "terrorist/terrorist organizations"; b) the CIA to put individuals (including citizens) on targeted kills lists; c) the FBI to put people on a Terrorist Watchlist;
2. There is no oversight to the process and the Government is not required to disclose who is on the list(s) or even the criteria to get on the list;
3. When the first (known) CIA targeted killing of a US citizen failed and the US Gov. was sued, the Court dismissed the case finding the Courts can not perform a Constitutional review, because such an Executive Order falls squarely within the Political Question Doctrine;
4. When the Government successfully killed the US Citizen, using a military drone strike, in a Country the US was not authorized to use the Use of Force (under International Law)...no one cared because the individual was Muslim and the Government assured us this was a guy with ties to Islamic terrorism. In fact, you can see in this article the such an attitude permeates all the way to the EFF, where one of EFF's Senior Staff Attorneys says he wouldn't have issue if Hammond had ties to Al-Qaida or Islamic State, but this is solely concerning to them because it is likely Anonymous;
5. Now the US Gov. has again extended their new found powers and now people are split...but what is really alarming is the people who think, well this guy was a piece of shit, so the Gov. got it right...no harm no foul.
This is not end of the World, sky is falling commentary, but wake up. It is never OK for any Government to have secret lists of any kind much less kill lists...and it is even more telling that the US Gov. refuses to disclose the lists (in full, certainly some lists are public) or the criteria/process.
> When the Government successfully killed the US Citizen, using a military drone strike, in a Country the US was not authorized to use the Use of Force (under International Law)
Which international law address US use of force in Yemen?
>Which international law address US use of force in Yemen?
Article 2(4) of the UN Charter is the general framework prohibiting the use of force between member States.[1] The UN Charter itself only provides for 2 exceptions to the prohibition on the use of force: a. Self-Defense and b. with prior authorization from the UN Security Council. However, much like the US Constitution, which has been interpreted and extended through legislation and through the Courts, the UN Charter has been interpreted through treaties, UN Resolutions, votes of the UN Security Council, case studies and customary law/international norms.
To put this in context, put the shoe on the other foot. Imagine a foreign national located in the US, who has been deemed a terrorist or equivalent by another country, and that country performs some kind of military/quasi-military/drone strike within the jurisdictional integrity of the US.
Separately, there is an entire second half to the analysis, so once the use of force is authorized (jus ad bellum), then we need to apply the actual laws of war (jus in bello). The easiest way to convey this is to say that the response must be proportionate to the act that authorized the use of force and otherwise use of certain weapons are prohibited, such as those that fail to distinguish between civilian and combatant (e.g. prohibitions against the use of chemical weapons). Looking at the facts of this particular case, it would appear problematic that before the CIA drone strike that killed Anwar al-Awlaki, the US botched at least a first attempt that resulted in the killing of 2 unintended targets.
I don't see how either of the first two paragraphs are relevant to the campaign in Yemen. The US use of force there has been with the cooperation of the government of Yemen.
Member States may not collude to circumvent international law. Certainly Yemen and the US could have cooperated and presented their case in an attempt to obtain the authorization from the Security Council.
Oddly the US legal justification is not that their action complies with International Law, rather that International Law does not apply...instead the US' position is that "a conflict between a transnational non-state actor and a nation, occurring outside that nation's territory, is an armed conflict not of an international character." However, the US' legal position is rather short sighted, and just imagine how quickly such a legal paradigm would break down if any foreign nation ever attempted to bomb one of their own citizens residing in the US and then claimed such use of force was not of an international character; therefore, International Law is not applicable.
In another comment, you say the violation is a failure to "respect the sovereignty, territorial integrity and political independence of other States".
In the case of the US operations in Yemen we are discussing, the sovereignty, territorial integrity and political independence of Yemen have been respected, since the US had the permission and cooperation of the Yemen government. The territorial integrity and political independence of al-Qaeda in Yemen is certainly not being respected, but al-Qaeda is not a State.
>In the case of the US operations in Yemen we are discussing, the sovereignty, territorial integrity and political independence of Yemen have been respected
Again Yemen's consent/cooperation is not the litmus test. For example US/Afganistan, the US had Afganisttan's cooperation to use force against the Taliban; nevertheless, the US went to and obtained authorization from the UN Secruity Council. This is/was a legal requirement, irrespective of the consent of Afganistan. The reason the US did the lawful thing Afganistan and not Yemen, is due to a poor (self-serving) legal interpretation, where the US does not consider what it did in Yemen of international character but the US could not make the same argument for Afganistan. Essentially the US claims (in a legal sense) it can kill its own citizens anywhere in the world without international law applying because US believes such action is domestic in nature. In other words the US is not making your argument, that they can use force wherever a foreign nation consents, the US' position is that the can use force anywhere in the world (with or without consent) so long as the force is used against its own citizens.
AQAP is not a UN member. Yemen is at war with AQAP. Yemen allowed the US strikes. The US thus no more needs UN support to strike AQAP than it does to raid a Montana militia compound.
Unless I am mistaken the legal paradigm you seem to be suggesting is that one country can intervene in another country's domestic armed conflicts/civil wars so long as they are invited. Such a paradigm is exactly what the UN was established to prevent, unilateral military action. There are dozens of case studies from Africa in the past ~30 years alone, a given country breaks out into a civil war and the UN sends peace keepers or other countries send troops (typically always in cooperation with the established government) but they can not lawfully engage unless the UN has authorized the use of force or they act in self-defense.
>Yemen allowed the US strikes. The US thus no more needs UN support to strike AQAP than it does to raid a Montana militia compound.
Not even the US suggests this is the case, as you have expanded the use of force to non-citizens. The US' legal memo is very clear, the US believes they were allowed to Use Force in Yemen without UN authorization because the target was a US citizen making this a domestic issue. The US legal opinion was very narrow regarding use of force against a US citizen, anywhere in the World, but the legal opinion acknowledges if it was not a US citizen that International Law would apply.
The case where one country cooperates in a military effort with another country on that country's own soil is the opposite of a "unilateral military action". The word "unilateral" means one party.
Yes, doing something unilaterally also means it's done without the agreement or participation of other people it might affect. In this context any use of force outside self-defense or authorized by the UN is unilateral. Take for example, US going into Iraq, even though there was a "coalition of the willing" comprised of approximately 30 nations, generally the international community condemned the use of force as unilateral military action because it was not authorized by the UN.[1] While the UN retroactively authorized the use of force in Iraq, it is still viewed as unilateral in the eyes of the international community, where unilateral military action is defined as "non-Security Council authorized". [2]
The parties involved in the UN are member states. AQAP is not a member state. ISIS is not a member state. The KKK is not a member state. The Donetsk separatists are not a member state. None of these organizations can demand any kind of due process from the UN. The UN exclusively governs relationships between its members. The UN is by design not a "World Court" to which arbitrary parties can appeal.
The only two member states with standing in the AQAP conflict are Yemen and the US. Both members agree on the action. Similarly, the US doesn't need the permission of the UN Security Council to raid the compound of a Montana militia group.
The UN Security Council is simply not implicated in the conflict with AQAP in Yemen.
Should Yemen withdraw its permission for the US to use air resources to combat AQAP in Yemen, that would change.
We aren't discussing the US invasion of Iraq, nor is the premise of this discussion that the US has never skirted the UN; clearly they have, just as Russia did in the Ukraine, the UK did in the Falklands, Turkey did in Cypress, and so on. So it does your argument no good to point out that the US has in the past not respected the UN. That has no bearing on the situation in Yemen.
Read Article 2(4) of the UN Charter. The violation of international law results from the failure to "respect the sovereignty, territorial integrity and political independence of other States." So again think of my hypothetical above, with the shoe on the other foot. If another country conducts a military strike in the US, and violates US sovereignty, the claim of self-defense must be against the US (i.e. the member State), not a claim of self-defense against an individual residing in the US.
Essentially, there would be no rule of law if Use of Force was authorized, under the self-defense, so long as one Country alleges a terrorist is residing in another Country. To be fair, under these specific set of facts, it may have been possible to make a case before the Security Council and have the Security Council authorize the Use of Force. However, that is the whole point the US circumvented the established law and acted unilaterally, when they could have gone to the UN presented their case and had a vote on the merits.
And about killing hundreds of thousands of unrelated civilians?
So, Al-Quaeda allegedly killed 10.000 people.
US then kill about 9000 more of its own citizens to kill some million and a bit more abroad, and cause some everlasting civil wars, including some that made Al-Quaeda, affiliates, allies and splinter organizations stronger, not weaker.
Parent comment was specific that killing a member of AQ in a specific instance was unlawful under International Law. I was asking about that specific instance, so I'm not sure what point you are trying to make. Clarify?
> 4. When the Government successfully killed the US Citizen, using a military drone strike, in a Country the US was not authorized to use the Use of Force (under International Law)...no one cared because the individual was Muslim and the Government assured us this was a guy with ties to Islamic terrorism.
It's pretty offensive to muslims to lead your characterization of al-Awlaki with the fact that he was Muslim, rather than the fact that he went to Yemen and took up arms against the United States while inciting violence against the country. U.S. Citizenship isn't a blanket immunity against U.S. military action. It's certain that the U.S. killed Americans who went and fought for the Nazis in Europe. Few people would challenge the validity of such actions. Does it become wrong because you make a list instead of doing it indiscriminately?
And ultimately, it's deeply counter-productive to try and lump people like Hammond together with people like al-Awlaki. Military action against foreign aggressors is a fundamental right of sovereign nations. People will not give it up. If you tell them that such actions must be subject to "law" all you'll accomplish is distorting and diluting the law to accommodate the sorts of actions that must be taken against foreign aggressors. The law should not try to insert itself into foreign military matters. It's not a fight it will win, and it will be the downfall of the law.
> It's pretty offensive to muslims to lead your characterization of al-Awlaki with the fact that he was Muslim
It was maybe too blunt, but it may have been part of the point to say it this way, as if it were said by the Americans who "didn't care" once they heard it was "just some Muslim-sounding name" and the person was accused of terrorism. Maybe I'm too cynical, but it's not hard to imagine many Americans would forget any outrage they might have had, once they heard the name "al-Awlaki." (I am an American myself, if it matters.)
[Later edit]: To build on the original point, maybe we need to stop using distracting mitigating terms like "drone", "terrorism", "citizen", "country", maybe even "al-Qaeda" etc. There's enough to talk about when we pare it down to: the Executive Branch is unilaterally and secretly a) investigating, adjudicating, and executing, b) spying on everything by default, c) instituting less-drastic but still restrictive measures, such as no-fly lists and watchlists. Is simplifying it to that extreme too naive? Maybe, but I'd rather start there and work forward, than getting sidetracked early about which nationalities it's OK to kill, and precisely which organizations are so knee-jerk evil that the mere whiff of them justifies almost anything.
P.S. I didn't lead with this because my other thoughts are more productive, but maybe you slighted Yemen almost exactly the way you accuse the parent of slighting Islam. At least, I read a negative connotation when you write "he went to Yemen", as if that's already half the case for why he needs to be killed.
> It's pretty offensive to muslims to lead your characterization of al-Awlaki with the fact that he was Muslim
It may very well be. But OP is not saying al-Awlaki was a muslim and therefore not worth bothing about raising a stink regarding constitutional issues, but rather that large swathes of population believe that.
Heck were are dealing with people who thought (and still think I bet) that Saddam Hussein was "al Qaeda".
> The law should not try to insert itself into foreign military matters.
All is well except for those pesky constitutional issues. If this was Russia or other countries which (I am guessing here), do not have the same rights in their Constitutions as US, there wouldn't be much to discuss.
So "foreign military matters" needs to be discussed a bit more. See, US is not at war with Pakistan. It is friendly with its government and allegedly is allowed by said Pakistani govt. to pick off people on the ground to kill using drones. So this needs to be talked about. Are we at war? Is "Global War On Terror" now an conventient cop-out to let us do this there without those Constitutional rights people getting into our business? What if those tribes in the mountains brought drones and started dropping anthrax boms or grenades on our cities, would we understand that as an equitable retribution and so on.
> Does it become wrong because you make a list instead of doing it indiscriminately?
Yes, it indicates this is wrong. There's a profound difference between killing someone in the heat of battle versus the president reviewing kill lists every Tuesday. The latter suggests a lack of imminence. Add to that he's a citizen and that the battlefield is any place where "terror" is.
Arguably, al-Awlaki simply preached dissent. Granted, you can argue he was a traitor actively trying to harm the US. In that case, so is Hammond, and a lot of other people conveniently on official lists.
Just because you disagree, even vehemently, with al-Awlaki's message, does not mean that we should compromise our principles of due process. Larry Flynt wasn't an ideal poster boy for free speech advocates. But his justice affirmed the strength of the 1st Amendment and was a small step in erasing racial boundaries (he published interracial porn shortly before being tried on obscenity). So I think lumping al-Awlaki and Hammond together is very much productive.
Arguably, al-Awlaki simply preached dissent. Granted, you can argue he was a traitor actively trying to harm the US.
This is a drastic oversimplification of what the USG believed about al-Awlaki. CT officials in the US believe al-Awlaki to have had direct roles in the "underwear bomber" passenger jet attack and an attempt to blow up two cargo jets with PETN. He was indisputably a counselor to Nidal Hasan, who murdered 13 people at Fort Hood.
In sum, the USG and UK believed al-Awlaki to have been Osama bin Laden without all the money, operating from a secure location in Yemen, recruiting random people from around the world to conduct horrible crimes in the name of AQAP.
It does a grave disservice to the tradition and, one supposed, the very concept of "dissent" to equate the coordination of murderous large-scale attacks on civilians with "dissent".
Sharing this belief with the USG does not require someone to believe that it was justifiable to assassinate him. But you can believe assassination to be wrong without glorifying its victims.
Many of us might well believe what you and the USG say about the late Mr Alwaki(1) if it were, you know, established with evidence in a court of law according to due process and all that quaint old fashioned stuff. Until then arguably he didn't do a lot wrong because of this other quaint, old-fashioned thing called the presumption of innocence.
Do we want to abandon such things as quaint and old fashioned when we're dealing with the death penalty? I really, really, really hope not.
It wasn't just the USG; the United Nations listed al-Awlaki as a terrorist in 2010, one year before he was killed: http://www.un.org/sc/committees/1267/AQList.htm. The UN isn't exactly known for being a hawk...
Thomas has already covered this quite well, but I'll briefly summarize again. al-Awlaki was actively at war against the USG. Killing him is roughly equivalent to killing US citizens who fight for other foreign governments. The drone strike was not carrying out a legal sentence, it was simply the use of force in a global conflict.
The UN is exactly known for being a court of law whose jurisdiction compels the USA to mete out sentencing with no right of appeal either.
If he was, why was it too hard to run the case? Why all this apologist stuff about an accusation being good enough for a death sentence - also carried out on his son while he sat in a cafe a week later. This is Stalinist reasoning, what is it doing in the USA?
Trials in absentia are unconstitutional in the US, and al-Awlaki was embedded with AQAP, a paramilitary force far outside the reach of the Yemeni government, with which it is at war.
The logic of the strike was that waiting for that situation to resolve itself would have the effect of giving al-Awlaki many more opportunities to coordinate attacks, that the pattern of al-Awlaki's involvement in attacks was one of escalating intensity, and that the attacks plots themselves were becoming more ambitious. At some point, the logic goes, he'll figure out how to coordinate a strike that actually succeeds in creating mass casualties.
There are a lot of very valid reasons to oppose drone strikes. For one thing, you might believe Obama to be a fundamentally reasonable person, and then remember how awful Bush II's national security staff was, and think about what crazy things the next President will do with the capabilities. You might, like me, also categorically reject the death penalty. And you might also be concerned with the idea of a "declaration of war" on a terrorist brand name which any idiot in the world can revive and slap on a black flag any time they want, thus ensuring that the war is never brought to an end. I know that's what I think.
What I don't think you can say is that in the al-Awlaki case the USG struck al-Awlaki down simply because he was a "dissenter". That's all.
What I do say is that a public servant should not have the right to declare someone worthy of death without any legal process and without any verifiable evidence. There are legal proceedings in absentia all the time. The protection of not having a trial in absentia, making it illegal, is so that the punishment is just. It is not a loop hole to say, "to hell with it let's just kill because law."
Is the evidence for literally all the claims above still "leaked to a newspaper by a public servant but officially neither confirmed nor denied"? Or are some public servants "on the record making the claim"? Is there anything testable and verifiable?
The claims may be entirely correct, I don't know and I don't actually care much. A claim is not evidence. I claim there are war criminals in the US government right now who should be extradited to the Hague, but so what if I claim that? It's of mild interest to some but has no baring on whether shooting them is legal, justified or something I should do anything but oppose.
Your closing comment:
"What I don't think you can say is that in the al-Awlaki case the USG struck al-Awlaki down simply because he was a "dissenter". That's all"
Strawman. Nobody claimed that in this conversation.
Does this mean you would have supported the right of Iraq to use drone strikes against the pentagon before Iraq capitulated? It certainly is a military target, so presumably that would be ok, after the invasion started? (I'm not asking if you'd be happy about it, but asking if you think it would be reasonable and fair according to international law).
> Until then arguably he didn't do a lot wrong because of this other quaint, old-fashioned thing called the presumption of innocence. Do we want to abandon such things as quaint and old fashioned when we're dealing with the death penalty?
al-Awlaki wasn't a criminal and he wasn't given the death penalty. He put himself in a position of being a foreign military threat and was dealt with as a military threat. No country extends due process or the presumption of innocence to foreign military actions, and it's a tremendous conceit to suggest that the whole world's activities should be encompassed under U.S. criminal law.
>>He put himself in a position of being a foreign military threat and was dealt with as a military threat. No country extends due process...
First, he was not a foreign military. He was a US citizen and non-state actor. That is the crux of the US legal opinion on the matter, the US says it can use force against its own citizens anywhere in the world and international law does not apply because if it is a citizen, non-state actor, then it is a domestic issue no matter where the individual is located. So legally, the US makes the distinction between a US citizen joining a foreign military (state actor) and a foreign terrorist organization (non-state actor).
However, to your point if it was a foreign military while due process may not apply laws of war apply, for example, it would not be murder to kill a foreign military actor on the battlefield but it is murder if you killed a captured enemy (POW). This is applicable even in this case, because after the first botched drone strike, his father sued the US and was trying to negotiate the surrender of his son, but the US couldn't even entertain a surrender because then the US would have had to acknowledge the existence of the kill list and the fact this guy was on it. In any other context, under the law, an enemy combatant would be permitted to surrender and at least avail themselves to certain rights, like the right not to be killed while a prisoner of war. I am not suggesting or stating emphatically he would have surrendered, but I don't doubt the Father's sincerity in his desire and intent to negotiate the surrender of his son.
When he was killed, Abdulrahman al-Awlaki was killed in the company of several high-level AQAP fighters. What's your best source for al-Awlaki's attempt to extract his son from Yemen?
As I am searching now for a legitimate source, I generally come up with Yemen's attempt to negotiate the surrender. [1] However, as far as the Father's attempt to negotiate, I can only come up with a CNN article. [2]
>"I will do my best to convince my son to do this (surrender), to come back but they are not giving me time, they want to kill my son. How can the American government kill one of their own citizens? This is a legal issue that needs to be answered," he said.
"If they give me time I can have some contact with my son but the problem is they are not giving me time," he said.
I am sure the lawsuit would detail all attempts he made with the US to begin negotiations.
I think you're a little confused. The "father" and "son" you're referencing in that CNN article are Nasser al-Awlaki and his son Anwar, Anwar being the adult AQAP target of the drone strike.
The "father" and "son" I'm referencing are Anwar and Abdulrahman al-Awlaki. Abdulrahman was Anwar's juvenile son, killed in a drone strike against senior AQAP militants some time after Anwar was killed. Nasser is his grandfather.
There is no evidence in here that Anwar al-Awlaki was attempting to extricate his juvenile son from the war zone he had taken him into.
Whether it was a case of dissent was exactly why it was controversial and why it sparked debate over free speech and due process rights. Sure, if you assume the government's official account to be true, it's a disservice to equate his actions with dissent. A trial would have determined whether he was merely advocating violence or whether he was plotting it. Since when does the presumption of innocence glorify anyone?
The government's argument in court was that liability for his assassination is not an issue the court can decide. They specifically avoided countering the argument that you find to be misleading, the same argument made by the estate of al-Awlaki in court. The court agreed that it didn't need to address that issue and dismissed the case for other reasons.
You think we're debating something that we're not debating. I don't have a position on drone assassinations and am not arguing that they're legitimate. All I'm arguing is that in al-Awlaki's case, the USG didn't assassinate someone merely for "dissenting".
> It's certain that the U.S. killed Americans who went and fought for the Nazis in Europe.
Probably, but some Wikipedia browsing reveals several who were captured and _not_ killed. (Beware, list assembled hastily, along with usual disclaimers about it being from Wikipedia.)
Some even had a death sentence commuted! I'm not informed or motivated enough to dig into the relative threat levels of these people vs. someone like al-Awlaki, how warfare has changed, al-Qaeda vs. Nazis, the circumstances of their capture, etc. I'll leave it at just noting that we've found a way to not-kill even an American SS officer (Monti), so maybe we can keep that up. Or at least, we can know not all American Nazis were killed "indiscriminately", nor when they were "on a list." (Although, in line with my previous post, I would hope this restraint would not be only because they are citizens.)
> rather than the fact that he went to Yemen and took up arms against the United States while inciting violence against the country.
It is difficult to call it a fact since there was no trial, no due process, nor evidence cited by US government in the killing of its citizen. Perhaps there was secret evidence presented in secret to a secret court, but that's rather grim consolation.
Also the concept of law should absolutely insert itself into matters of foreign military matters. WWI and WWII were both horror shows, Western civilization rightly decided to do their best not to repeat the worst of the atrocities committed therein. You seem all to eager to return to a world where Western governments kill millions without consequence.
> It is difficult to call it a fact since there was no trial, no due process, nor evidence cited by US government in the killing of its citizen.
Trials, due process, evidence, these are domestic legal concepts. They don't apply to military actions on foreign soil.
> Also the concept of law should absolutely insert itself into matters of foreign military matters.
Rule of law depends on the institutional capital of the judiciary. The judiciary inserting itself into diplomatic and military matters costs institutional capital. The more the judiciary stays out of the foreign affairs of the military, the easier it is to keep the military out of the domestic affairs of the judiciary. And ultimately when you make politically necessary things illegal, you set the rule of law up for failure.
1. US Gov. passes Executive Order permitting: a) the Depart. of State to identify individuals/organizations as "terrorist/terrorist organizations"; b) the CIA to put individuals (including citizens) on targeted kills lists; c) the FBI to put people on a Terrorist Watchlist;
2. There is no oversight to the process and the Government is not required to disclose who is on the list(s) or even the criteria to get on the list;
3. When the first (known) CIA targeted killing of a US citizen failed and the US Gov. was sued, the Court dismissed the case finding the Courts can not perform a Constitutional review, because such an Executive Order falls squarely within the Political Question Doctrine;
4. When the Government successfully killed the US Citizen, using a military drone strike, in a Country the US was not authorized to use the Use of Force (under International Law)...no one cared because the individual was Muslim and the Government assured us this was a guy with ties to Islamic terrorism. In fact, you can see in this article the such an attitude permeates all the way to the EFF, where one of EFF's Senior Staff Attorneys says he wouldn't have issue if Hammond had ties to Al-Qaida or Islamic State, but this is solely concerning to them because it is likely Anonymous;
5. Now the US Gov. has again extended their new found powers and now people are split...but what is really alarming is the people who think, well this guy was a piece of shit, so the Gov. got it right...no harm no foul.
This is not end of the World, sky is falling commentary, but wake up. It is never OK for any Government to have secret lists of any kind much less kill lists...and it is even more telling that the US Gov. refuses to disclose the lists (in full, certainly some lists are public) or the criteria/process.